I’m sorry for the recent silence here, but I’ve been busy. We—by which I mean myself, the IILP, and our excellentlawyers—have asked the court hearing the Google Book Search case to let us file a brief amicus curiae. Our brief will explain to the court why the case is all about the orphans:

The proposed settlement will have a profound effect on orphan works because the proposed class includes the owners of millions of orphan works. By virtue of their status as orphan works owners — a well-recognized and significant subclass of book copyright owners — they are unlikely to appear before this Court to opt out of or object to the proposed settlement. Google will therefore be explicitly authorized to make these works available to the public in ways that would be flagrant copyright violations were it not for the proposed settlement. This authorization will serve the public interest in greater accessibility to orphan works.

The proposed settlement’s effective inclusion of millions of orphan works will also have effects that threaten the public interest. Because potential competitors will be unable to make use of orphan works, Google will enjoy exclusive access to a large portion of the market for electronic versions of books. This exclusivity would result in a concentration of market power, thereby facilitating actions that violate the federal antitrust laws. It would also enable Google to impose unfair and overreaching terms on libraries and readers, particularly in ways that would threaten the free speech interest in private reading.